As this report was being prepared, the people of Ukraine began their fight against the invasion of their country by Russia. Their brave struggle against tyranny reinforces the value of democracy, human rights and the rule of law—as does the treatment of those Russians who oppose the war. It is crucial that individuals are able to challenge the State when it defies the law and fails to respect fundamental rights. The UK is supporting the Ukrainians in their battle against the Russian invasion and the threat it poses to human rights. It would be a terrible irony for us to be weakening our own protections for human rights as we do so.
Pursuant to their 2019 Manifesto commitment to “update the Human Rights Act”, on 14 December 2021, the Government published a consultation, Human Rights Act Reform: A Modern Bill of Rights. The consultation proposes replacing the Human Rights Act 1998 (HRA) with a British Bill of Rights “for the whole of the UK”1 and making significant changes to the current mechanisms for enforcing human rights in the HRA. We are concerned that the proposals and their consequences run counter to three central principles of human rights law. Human rights are universal; they apply to everyone. Human rights are fundamental and require special protection within the domestic and international legal order. Human rights must be able to adapt to stand the test of time, as the common law does. We do not think a case has been made for replacing the Human Rights Act with the British Bill of Rights in the form proposed by the Government.
The HRA has had a positive impact on the enforcement and accessibility of rights in the UK, both in and out of court. Cases are now heard by UK judges in UK courts rather than applicants having to take cases to the European Court of Human Rights (ECtHR) in Strasbourg. This has enabled UK judges to take account of our national context when making decisions, before cases reach the ECtHR. Judgments of the UK courts are held in high regard by the ECtHR and the HRA has led to fewer successful cases against the UK before the ECtHR. As the judgments of the ECtHR are well respected, the HRA has also led to UK courts influencing ECtHR case law. The relationship between the UK courts and the ECtHR is a constructive one.
We do not support the Government’s proposals to weaken the obligation in section 2 HRA for the UK courts to take into account judgments of the ECtHR. The proposed changes risk impeding the ability of human rights law to evolve and adapt to changing circumstances in modern society. They would most likely lead to legal uncertainty with a corresponding increase in the time and cost of litigation needed to resolve such uncertainty. Claimants may need to pursue their claims before the ECtHR more often, due to potential difficulties in enforcing human rights in the UK.
The Government consultation expresses concerns that the HRA has led to the courts making decisions better suited to Parliament. To that end, the consultation suggests that Parliament should have a greater role in scrutinising bills for compliance with human rights. To support this aim, Parliament should always be provided with good quality human rights analysis when a Bill is introduced, justifying the Minister’s assessment of human rights compatibility of a Bill with all relevant human rights standards, and adequate time should be allowed in the legislative process for effective scrutiny.
We think the remedial order process in section 10 can be a useful tool for remedying human rights violations, and therefore caution against changes being made to section 10 without a clear plan of how incompatibilities would otherwise be addressed without unwarranted delay. Moreover, we would support a more structured system to improve collaboration between the Government, Parliament and this Committee in planning timely action in response to adverse ECtHR judgments or declarations of incompatibility made by the domestic courts.
We do not, however, support either repeal or reform of section 3 (which requires legislation to be read compatibly with Convention rights so far as it is possible to do so). Recent case law indicates that the courts are using section 3 appropriately. The options the Government has put forward for reform, which include repeal, would substantially weaken the protection of human rights in the UK.
We are also concerned that the Government’s proposed changes regarding litigation and remedies may dissuade individuals from bringing human rights cases in court and run the risk of breaching the obligation to provide an effective remedy in Article 13 of the European Convention on Human Rights (ECHR). The evidence for a new permission stage in human rights claims is weak and courts can already filter out unmeritorious claims. Requiring the courts to take into account certain factors likely to weigh in favour of the State and against the claimant risks interference with the courts’ discretion. Most concerningly, providing that damages may be reduced on the basis of the claimant’s past conduct (which is undefined in the consultation) threatens the principle that human rights are universal. We also do not support the Government’s proposals to alter the weight the courts must give to the views of Parliament when assessing proportionality, as the need to respect those views is already recognised by the courts.
The HRA has led to significant improvements in the enforcement of human rights out of court. The duty for public authorities to act compatibly with Convention rights in section 6 has placed human rights at the front and centre of decision-making and the provision of services, and the development of positive obligations has led to public authorities taking active steps to protect human rights. The consultation, however, takes issue with section 6 and positive obligations, stating that the former has created uncertainty for public authorities and the latter have been developed by the courts without a democratic mandate, leading them to interfere in matters of resource allocation. We disagree; both are fundamental to enable individuals to enforce their human rights.
The Government consultation also covers a number of specific rights and issues. The consultation suggests the new Bill of Rights will contain: greater protection for freedom of expression (as enshrined in Article 10 ECHR); a new right to jury trial; and limits on the circumstances in which foreign national offenders can rely on human rights in deportation cases. We do not think these changes are necessary.
When freedom of expression and the right to privacy are in conflict, the courts conduct a finely-tuned balancing exercise to decide which should prevail. To give stronger priority to freedom of expression would unbalance the Convention rights, undermine the principle that all rights are equal and fundamental, and prevent the courts from undertaking a balancing exercise as required by the Convention
It is not clear what legal significance a right to jury trial would have. There is no general right to trial by jury; for summary offences there is no such right and it is up to Parliament to choose which offences are summary only. Article 6 ECHR also already permits trial by jury. It would be a symbolic gesture, but one that would undermine the Government’s own stated aim of creating a Bill of Rights for the whole of the United Kingdom, given the right to jury trial does not exist in Scots law.
Finally, further limiting the scope for human rights arguments in deportation cases would make it virtually impossible for the courts to conduct the balancing and proportionality exercise, denying those subject to deportation orders their full Convention rights. These proposals would undermine the fundamental principle that human rights are universal. The law already gives great weight to the public interest in deportation and curtails the rights of individuals. It is not necessary or proportionate to impose further restrictions on rights.
Given the importance of the HRA in the devolved nations, we are concerned that the Government proposals could have unintended consequences for the constitutional settlement in the UK.
1 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, , December 2021, para 35.